Injured workers still face real struggles

Hamilton Spectator

(Apr 29, 2008)

Families, workers and their supporters gathered yesterday with members of the Hamilton and District Labour Council and Hamilton Injured Workers Group in sombre reflection. They remembered the dead, but also renewed their commitment to fight for the living.

It was the national day of mourning for workers killed or injured at their jobs and for those who have died from workplace-related exposures.

As they do each year, mourners gathered at the corner of Bay and Main streets in Hamilton to pay their respects in front of the monument for workers killed and injured.

Controversial when it was unveiled in 1990, the steel sculpture remains a powerful image: a decapitated figure clinging by its fingertips to a metal wall.

Today, most observers hold an appreciation for the message the monument conveys. It is a stark tribute to workers who lost their lives, but it is also a reminder of the very real struggles many injured workers continue to face.

Ontario's workers' compensation system has been around since 1914. On April 28 of that year, employees gave up the right to sue their employers when they were injured on the job. In return, workers were promised a fair and adequate system of compensation.

Various adaptations of workers' compensation legislation have come and gone over the years. The regime is now known as the Workplace Safety and Insurance Act.

Many injured workers discover that manoeuvring through the provincial compensation system following a job-related injury is incredibly complicated. The benefits provided are often inadequate and in some cases may subject injured workers to lives of impoverishment.

Not all workplace injuries are covered and not all employees in this province are entitled to benefits. Nevertheless, it is virtually impossible for an injured worker to successfully sue his or her employer.

Many obstacles confront injured workers when they file a compensation claim. Timelines for filing claims are restrictive. Some workers are forced back into their jobs too early, before their injuries have fully healed. And if, as a result of an injury, a worker is unable to return to his or her old job, some employers are still reluctant to accommodate or modify the job requirements to meet the special needs of an injured worker.

On top of these issues, various provincial governments (of all three political stripes) over the years have failed to remedy serious flaws in the system.

According to lawyer Andrew Bome, "inflation has had a devastating impact on injured workers who rely on compensation benefits." Since 1995, the cost of living has increased by 29 per cent, while benefits for injured workers have only gone up by 5.5 per cent.

Injured workers have been calling for full cost-of-living adjustments to be built into legislation; so far the provincial government has only provided temporary relief.

But while injured workers continue to struggle financially, some employers are receiving lavish rebates through a program called "experience rating."

Experience rating was conceived as a way to encourage health and safety in the workplace. The government would provide financial rebates to employers who had good health and safety records.

Advocates argued for years that experience rating had a negative effect on injured workers. Marion Endicott of Injured Worker Consultants wrote 13 years ago that the program undermined "the basic principles on which the compensation system is built."

As it turned out, handing out rebates has encouraged companies to hide injuries, challenge claims and in some instances pit employee against employee -- if, for example, employers hand out year-end financial bonuses for injury-free workplaces.

In an investigative report, the Toronto Star recently profiled an example of the abuse of experience rating. In 2001, an Inco foreman died on the job as a result of what a provincial investigation revealed was the company's failure to provide proper training. Inco paid a $375,000 fine for violations of the Health and Safety Act. In the same year, Inco received a $5-million rebate from the Workplace Safety and Insurance Board for "having a safe workplace."

According to the Ontario Federation of Labour, tens of millions of dollars are drained out of the compensation board's accident fund each year by employers "who have learned how to play the game ... rebates have exceeded penalties by more than half a billion dollars in the last four years alone."

Premier Dalton McGuinty recently called the numerous examples of workplaces that have received government rebates following the death or serious injury of workers "an embarrassment." He's right.

Ontario's system of workers' compensation must be reformed, before any more workers are mourned.

Freelance columnist Tom Cooper is a social justice advocate. He lives with his family in Dundas.